- (1.) KHETSI and others plaintiff appellants have filed this appeal against the judg-ment and decree of the Revenue appellate Authority, Jodhpur dated 6. 3. 1964. Briefly the facts of the case are that the plaintiffs' ancestors were the mortgagees in possession and the defendant respondent Jawar Singh was the mortgagor who made a usufructuary mortgage in Smt. 1945. The mortgage was subsequently redeemed. The plaintiff appellant filed a suit for the recovery of rent for Smt. 2011, 2012 and 2013 alleged to have been wrongfully recovered by the defendant respondent Jawar Singh while the usufructuary, mortgage subsisted. The trial Court rejected the plaintiffs' suit holding that the plaintiffs' remedy lay in the Civil Court and not in the Revenue Court. In the appeal filed by the plaintiff appellant before the Revenue Appellate Authority he remained unsuccessful. Hence the second appeal.
(2.) THE counsel for the plaintiffs first contended that the suit for the recovery of rent wrongfully collected by the defendant respondent was maintainable in the Revenue Court, but he was unable to explain how the relationship of a tenant and landlord between the parties came to be established during the subsistence of the mortgage of the suit land. THE plaintiffs' claim was that while the usufructuary mortgage subsisted, the rent which the tenant should have paid to the mortgagees in possession was wrongly recovered by the mortgagor and thus he was entitled to the payment of this amount. This does not establish the relationship of a landlord and a tenant to enable a landlord to maintain a suit for the recovery of rent. THE mortgage of proprietory interest in favour of the plaintiff appellants no doubt, entitled the plaintiffs appellants as mortgagees in possession to collect rent from their tenants. But if the mortgagor or some-body else personated in collecting the rent from the tenants it does not operate to establish the relationship of a landlord and a tenant between the mortgagee and the mortgagor. Suit for rents can only be maintained by a landlord or tenant-in-chief against the tenant or a sub-tenant respectively. In this case, no such relationship exists between the plaintiffs and the defendant. THE suit for recovery of rent was, therefore entirely misconceived and it was clearly on this ground that both the Courts concurrently held that they had no jurisdiction to try such suits. THE remedy of the appellant lay in a Civil Court, if any. The counsel for the appellants in view of this clarification, conceded that the suit was not maintainable and as such he requested that an order may be passed to return the plaint to the appellants for presentation to the proper Court. We, therefore, reject this appeal of the appellants, confirm the order of the dismissal of appellants' suit by both the Courts but direct that the trial Court may return the plaint to the appellants after endorsing the plaint with the remark that it is being returned to them for presentation to the proper Court. .;